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Wisznia Co., Inc. v. General Star Indemnity Co.

United States Court of Appeals, Fifth Circuit

July 16, 2014

WISZNIA COMPANY, INCORPORATED, doing business as Wisznia and Associates, Plaintiff--Appellant

Appeal from the United States District Court for the Eastern District of Louisiana.

For Wisznia Company, Incorporated, doing business as: Wisznia and Associates, Plaintiff - Appellant: Douglas Alfred Kewley, Esq., Thomas Francis Gardner, Esq., W. Lee Kohler, Esq., Gardner & Kewley, A.P.L.C., Metairie, LA.

For General Star Indemnity Company, Defendant - Appellee: H. Minor Pipes III, Catherine Fornias Giarrusso, Esq., Barrasso, Usdin, Kupperman, Freeman & Sarver, L.L.C., New Orleans, LA.

Before HIGGINBOTHAM, JONES, and PRADO, Circuit Judges.


Page 447

EDWARD C. PRADO, Circuit Judge:


Plaintiff--Appellant Wisznia Company, Incorporated (" Wisznia" ), an architecture firm, sued its general-liability insurer, Defendant--Appellee General Star Indemnity Company (" General Star" ). Wisznia sought to recover its costs in defending a lawsuit brought by its former client, Jefferson Parish. Wisznia contends General Star was obligated to defend Wisznia against the civil suit brought by Jefferson Parish under the terms of two insurance policies. In the underlying lawsuit, Jefferson Parish essentially asserted Wisznia improperly designed a building and did not adequately coordinate with the builders during its construction.

General Star refused to defend Wisznia and asserted that the relevant insurance policies excluded coverage for damages arising from the rendering of professional services. After removing the case to federal court under diversity jurisdiction, General Star moved for summary judgment arguing it had no duty to defend Wisznia. The district court agreed and granted summary judgment because the allegations in Jefferson Parish's petition

Page 448

" pertained to the rendering of or failure to render professional services by Wisznia," and entered final judgment for General Star. Wisznia timely appealed. For the reasons stated below, we affirm.


The district court had jurisdiction based on diversity of citizenship because Wisznia, a Louisiana corporation with its principal places of business in Louisiana, is diverse from General Star, a Connecticut corporation with its principal place of business in Connecticut. See 28 U.S.C. § 1332(a). We have jurisdiction to review the district court's final judgment. 28 U.S.C. § 1291. We review a grant of summary judgment de novo. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). Summary judgment is appropriate if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). We view all facts in the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant's favor. Coleman, 113 F.3d at 533.

A federal court sitting in diversity applies the substantive law of the forum state, in this case Louisiana. See Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013). We review the district court's determination of Louisiana state law de novo. Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 562 (5th Cir. 2013). " To determine Louisiana law, we look to the final decisions of the Louisiana Supreme Court." In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007). In the absence of a decision by the Louisiana Supreme Court, we predict how, in our best judgment, that court would decide the question. Id. We do so with the principle in mind that under Louisiana's civil law tradition, we must first examine " primary sources of law" --the constitution, codes, and statutes--because " '[j]urispurdence . . . is a secondary law source in Louisiana.'" Id. (quoting Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169, 175 (5th Cir. 1999)). Accordingly, we are not strictly bound by Louisiana intermediate appellate courts; however, we will not disregard them " unless we are convinced that the Louisiana Supreme Court would decide otherwise." Id. (citing Am. Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 261 (5th Cir. 2003)).


Wisznia's sole contention on appeal is that the district court erred in concluding General Star owed Wisznia no duty to defend it in its case against its former client, Jefferson Parish, and in granting General Star's motion for summary judgment. Wisznia argues the professional-liability exclusion in its general-liability insurance policies issued by General Star did not unambiguously exclude coverage and, therefore, the policies obligated General Star to defend Wisznia. Thus, decision on this question requires us to predict how the Louisiana Supreme Court would interpret the insurance policies that General Star issued to Wisznia, so we begin by reviewing principles of insurance law articulated by the Louisiana Supreme Court.

A. Louisiana Insurance Law

Under Louisiana law, " [a]n insurance policy is a contract between the parties and should be construed by using the general rules of interpretation of contracts set forth in the Louisiana Civil Code." Mayo v. State Farm Mut. Auto. Ins. Co., 2003-1801, p. 3 (La. 2/25/04); 869 So.2d 96, 99. The Louisiana Civil Code provides that " [t]he judiciary's role in interpreting ...

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